The Present and the Future of the BPTO
By Gabriel Leonardos, president of ABPI
The BPTO – Brazilian Patent and Trademark Office is a federal agency created in 1970, replacing the former DNPI (Brazilian Department of Industrial Property), which was a department within the then Ministry of Industry and Commerce. Since then, the body, whose primary attribution is to foster innovation and technological development by granting industrial property rights (such as patents, trademarks, and industrial design registrations), has never been able to optimally carry out the missions assigned to it.
In 1996, in another relevant advance, the Brazilian Industrial Property Law determined that the BPTO would have financial and administrative autonomy, but this was never implemented. The reality is that if the BPTO were to depend on government alms (as has been the case for over 50 years), it should have remained a mere department.
Based in Rio de Janeiro, the BPTO has a high-level technical staff and establishes decisions impartially and independently. With dozens of cooperation agreements signed with the main foreign intellectual property authorities, the BPTO enjoys international respect and credibility. It was never involved in the many corruption scandals plaguing our country, but we continue to deny the BPTO the means to make it work properly.
In the 1970s, consideration was given to moving the BPTO to Brasília, where the “Palace of Patents” would be created. During a year, tens of thousands of processes (then in paper) were packaged to be sent to the federal capital. Subsequently, the idea was abandoned, and the unpacking of processes took another year. It is evident that, during that biennium, no decision was made! This episode is significant of the improvisation with which the BPTO has always been treated.
In recent years, we have made significant advances, such as reducing the period for examining patents, achieved with a simple administrative measure: in the case of patents originating from abroad, the BPTO started to take advantage of the examination carried out by foreign authorities, instead of redoing the entire work in Brazil. But, even so, the average period for examining patents, which is more than seven years from the date of the protocol, is more than twice as long as desired and makes the system uninteresting for the Brazilian business community that is unable to plan investments with such a long horizon.
Another good piece of recent news was the discussion with civil society and the approval of Decree 10,886 of the ENPI – Brazilian National Strategy for Intellectual Property, which aims to systematize the progress of Brazilian institutions in this field. However, without breaking the paradigm of the BPTO’s financial shortage, we know those good intentions will not be carried out.
In 2018, the STF (Federal Supreme Court) unanimously decided, in the Plenary (ADI 3863), that the fees charged by the BPTO are a public price and, as such, should fully revert to the provision of services. But for decades, the federal government has appropriated these resources for other purposes, treating them as if they were part of tax collection and leaving the autarchy to starve. In other words, in practice, a tax on innovation was created, despite the law, which partly explains the growing technological gap in our country.
The BPTO lacks investments in technology and personnel but does not need funds from the Treasury, as it has a surplus. For our country to enter a virtuous circle of innovation and entrepreneurship boosted by intellectual property protection, it is enough that the BPTO collection is not diverted to other purposes. As Mark Twain wrote in 1889, “A country without a patent office and good patent laws is just a crab, and cannot travel any way but sideways and backways.”